*1 DOUGLAS, Before ROBERTS and DAL- LY, JJ. Jan. OPINION DALLY, Judge.
Each
from a
murder;
each
viction
imprisonment
case is
life.
wife, pled
husband
Lambert,
Heath
Nancy
year
son of
Ronk
two-and-a-half
old
previous marriage.
were
previously convicted
child,
incident, and sen-
on the same
twenty years.
imprisonment
tenced
Code,
22.04.
V.T.C.A.
Because
Penal
Sec.
an essential ele-
indictments omitted
the earlier
were
reversed
ordered
Ronk v.
dismissed.
indict-
ments on
before us
which the convictions
returned.
based were then
in ob
contend
taining
them
earlier
announced
violated the rule
erry,
F
agree,
We
lant, initially with and assаult, of misdemeanor which he sentence.* a six-month then filed notice entitled law court. After appellate *2 more of murder. That Perry his notice but before the serious offense filed novo, the trial obtained de the indictments were appellants’ the felony charging Perry an indictment distinguish does not these found same assault. This indictment was the Blackledge Perry, supra, be- v. cases from prеviously which Perry conduct for law, Carolina exer- cause under North the Perry been tried and convicted. entered right of his to Perry cise plea of to the and latter indictment clean; priоr wiped the slate “the conviction was sentenced to term of five to seven annulled, the the prosecution and and [was] years penitentiary. the The United [began] 417 U.S. defense anew ...” that, the Supreme States Court held under Furthermore, rationale its decision in North Carolina v. from appre- to free right of a defendant be Pearce, 89 S.Ct. if he retaliate will hension that the State (1969), рerson convicted of an L.Ed.2d 656 his conviction should successfully appeals statutory offense is entitled to his appeal which ground not turn on on that, right appeal to is based. successful, if the will State retaliate a more is no evidence one, maliciouslyor in bad in this acted cutor to a significantly increased indictments, faith in seeking period of held incarceration. Court v. but the of North Carolina rules bringing that the of the prosecutor action Perry, supra, and v. do severe violated the Due that, require showing. not such a We hold Process Clause the Fourteenth Amend imper in this it was ment. missible for respond the State to to the The similarities the instant case their appellants’ successful invocation and v. Perry, appar- appeal by bringing the more serious appellants, ent. The their by exercising against them. Because State right to appeal, succeeded permissibly require could not their then convictions. charge, answer to the murder indicted for a more based foreclose them guilty pleas not do they had same conduct for which appeal. on jury previously They waived a been tried. supra. Blackledge Perry, v. pled and and guilty to new this opinion it is observed In the received more severe than sentences much prior jury that when uninformed they following their first trial. received punishment, proceedings assesses origi- аrgues because the State on nal indictments were defec- objective identifiable facts which occur void, Offense, they alleged tive and and process sentencing, ter the securing indictments the new Styn offended. Chaffin present merely State undertook to correct chcombe, 412 U.S. and valid indictments. We do not find However, wholly this is argument convincing. Even though inapplicable to the facts of this case dead, child was first elected was assessed appellants’ punishment obtain indictments there is no jury the court not a and and to a child than indictments rather objective fаcts evidence of identifiable for murder. If were the after occurred charge to brought against there is a viola- The dissent admits why originally charged by the applied United tion of due murder? indictments obtaining Blackledge Per- present Supreme States merely State did not says dissent ry, supra. valid reformed to appellants with should be sought to these alleged prior for enhance- injury to two show conviction for the offense of alleged whereas had been should then indictments. The second for assessment remanded the trial court identical, it ap- were not punishment. To do so would circumvent pears escalation clear that there supra. The Blackledge Perry, the rule of proven, if charges of the was trans- of Blackledge rule *3 to be sentence require an life automatic were indicted gressed when the used, would imposed if not to stand trial for required for murder and leverage give in prosecutor greater following their the more offensе serious Thus, like we any plea bargain. from suggesting a presented are had to a child. If the prosecutorial vin- potential likelihood of of the offense been reindicted for of an person A dictiveness. might very a rather than of is entitled offense jury trial or a not on a well have decided that certainly guilty plea. They would prosecution will retaliate attempted plea position in better a charge original a more serious bargaining. significantly in- State, 574 reliance on Moss S.W.2d incarceration.” potential period creased State, 532 (1978) 542 and Jones v. S.W.2d [Emphasis added.] in the (Tex.Cr.App.1967) 596 pun- maximum supra, Under Art. dealt opinion since neither inappropriate impris- was by assault robbery ishment viola- with the life, punish- maximum onment for while rein- process. werе no tion with a firearm assault robbery by ap- in The State dictments these cases. This difference death. parent good faith had obtained by Furman v. punishments was abolished residence; proof fаiled burglary of a unconstitu- Georgia, which declared allegations, was suffi- but sustain these was then it penalty tional death offense cient to included sustain lesser case, the the instant imposed. unlikе building. a burglary of attempted State, supra, did not result error in Bouie v. (Tex.Cr. of a more serious State, 543 565 from the substitution Bouie v. S.W.2d charged. originally reaching the offense authority for App.1978) is not dissenting opinion. sought and the caus- are reversed reading por a readily by This can be seen es remanded. concurring opinion tion dissenting. DOUGLAS, Judge, quote: we defendant, “In the case the instant a af- holds robbery if indictment, a indictment for can be ter prosecute he intended to nor sentence an increased neither indictment was held offense. charged with a more serious must be re- He latеr also this case defective. conclude than returned versed and remanded sought a third and obtained punishment. assessment with a' robbery by assault time for firearm, rather than fundamentally defectivе An indictment a Though differ of robbery by assault. offense allege an only when fails to it the of ence penalty exists and, thus, does Texas laws V.A.P.C., fenses, Article [foot of the trial court. jurisdiction not invokе the largely omitted], Corporation note the difference Food American Plant Furman v. the decision Ex (Tex.Cr.App.1974); neutralized S.W.2d (Tex.Cr. Cannon, Georgia, 408 parte opinion). a When App.1976) (concurring indictment, the such an stop changes in case is tried on cutor did not court, void. primary offense question theory instant bottomed defendant presents a that a penal from, absolutely nоr cerning the of such be deterred effect neither for, ized a conviction. concludes conviction. The conviction, the ter successfully a void conviction on a more prosеcute State may not may not reindict on impose more may judge nor in the purported than the contained However, Pearce and severe sentence. sen- indictment an absolutе bar impose Blaekledge did tence may jury, un When a to increased doing, majority improp- In so prior proceedings, assesses informed of the erly significance attaches pun greater punishment proceeding. sig- has void conviction identifiable, objective ishment is based on nificance; court lack- was obtained sentenc facts which occur after ing jurisdiction nullity. and is a This case *4 is ing, not offended. trial, considered as if Stynchcombe, 412 U.S. Chaffin v. a nullity, did not occur. the record (1973); 1977, North S.Ct. 36 L.Ed.2d attempt- would indicate that the State Pearce, supra. Carolina v. ed to indict thе to á indict then, The a vindictive injury, date, the child. At a se- would serve to and sentence cured The a murder indictment. vindictive nature The deter the defendant. a reindictment would not hold that such be cured punishment could would be improper. Bouie remand logic The majority quickly falls ve Howe apart when are considered. other situations r, remand for majority rejects For example, acquitted more se punishment “murder”.is because proceeding, the void legal child.” “injury vere hold a sub- jeopardy prevented that double are the consequences of both sequent upon Its valid indictment? same. logic jeop- in this case indicates that double remanded, If the causes must ardy prosecution. would bar such a assess- proper should be sent back for the we would be left the curious twenty not to exceed proceeding respect void with years. acquittal. conviction but not an good ways. rule of law works both A void void; just must be that — legal ma- purposes, hаppened. it never
jority not-so- makes it sometimes and void other times. majority reverses remands BLEDSOE, Appellant, Wayne Michael been con- because “the mur- victed of the more serious offense of STATE der.” was error assuming Even there proper. is not disposition No. 55048. relief, determining Court of appropriate determine the exact Here, complaint appel of which is made. Feb. lants complain prosecutorial of both
judicial v. Per vindictiveness. ry, 417 U.S. (1974); 23 L.Ed.2d Blaekledge and Pearce are Both